C.A. 5th Cir. Certiorari denied. Reported below: 315 F. 3d 489.
The Supreme Court, however, has upheld the constitutionality of suspicionless searches at permanent immigration check-points like the one involved in this case. See United States v. Martinez-Fuerte, 428 U.S. 543, 566, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); see also United States v. Moreno-Vargas, 315 F.3d 489, 490 (5th Cir. 2002). Border Patrol agents stationed at a permanent checkpoint may stop a vehicle, question its occupants about their citizenship, and conduct a visual inspection of the vehicle without any individualized suspicion that the vehicle or its occupants are involved in a crime.
Id. at 456 n. 1. We have held that a fixed checkpoint having as its primary purpose the identification of illegal immigrants is not rendered invalid under Edmond by having as a secondary purpose narcotics interdiction (as reflected by having permanently available there dogs cross-trained to detect drugs as well as humans). United States v. Moreno-Vargas, 315 F.3d 489 (5th Cir. 2002) (noting there was no evidence the checkpoint would not be maintained without the secondary purpose). See also, e.g., United States v. Davis, 270 F.3d 977, 979 (D.C. Cir. 2001).
This court has also recently held that illegal drug interdiction may be carried out at immigration checkpoints, though not as the primary purpose of those checkpoints. United States v. Moreno-Vargas, 315 F.3d 489 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1770, 155 L.Ed.2d 514 (2003). The permissible duration of the stop was the amount of time reasonably necessary for [the border patrol agent] to ask a few questions about immigration status.
The Fifth Circuit has determined, post-Edmund, that a checkpoint with a primary immigration purpose was constitutional “regardless of whether or not it could also be said to have a secondary programmatic purpose of drug interdiction.” United States v. Moreno-Vargas, 315 F.3d 489, 491 (5th Cir. 2002). While this case does not provide precedential value, it does constitute persuasive authority.
Additionally, the Fifth Circuit has determined, post-Edmund, that a checkpoint with a primary immigration purpose was constitutional "regardless of whether or not it could also be said to have a secondary programmatic purpose of drug interdiction." United States v. Moreno-Vargas, 315 F.3d 489, 491 (5th Cir. 2002). While this case does not provide precedential value, it does constitute persuasive authority.
Additionally, the Fifth Circuit has determined, post-Edmund, that a checkpoint with a primary immigration purpose was constitutional "regardless of whether or not it could also be said to have a secondary programmatic purpose of drug interdiction." United States v. Moreno-Vargas, 315 F.3d 489, 491 (5th Cir. 2002). While this case does not provide precedential value, it does constitute persuasive authority.
Two circuit courts addressing the issue—the Fifth and D.C. Circuits—have concluded that Edmond tolerates checkpoints having a secondary, but invalid, purpose. See United States v. Moreno–Vargas, 315 F.3d 489, 491 (5th Cir.2002) ("We accordingly hold that Moreno's immigration stop at the Sarita checkpoint was valid because the checkpoint has as its primary programmatic purpose the enforcement of the immigration laws, regardless of whether or not it could also be said to have a secondary programmatic purpose of drug interdiction. " (emphasis added));
Moreover, Edmond specifically provides that "the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene." Edmond, 531 U.S. at 48; see also United States v. Moreno-Vargas, 2002 WL 31829306 (5th Cir. Dec. 18, 2002) ( Edmond requires no more than that the checkpoint have as its primary programmatic purpose the enforcement of immigration laws), cert. denied, 538 U.S. 962 (2003). Finally, while Edmond requires that a checkpoint program have a lawful primary purpose, this case "does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose."
Although, the very presence of footnote two seems "divorced from the rest of the opinion," in that the language of the opinion itself seems to indicate that if the primary purpose is lawful, the checkpoint is constitutional. See United States v. Moreno-Vargas, 315 F.3d 489, 490 (5th Cir. 2002); United States v. Davis, 270 F.3d 977, 979 (D.C. Cir. 2001). It is well established that a highway stop of motorists at a government-operated checkpoint effectuates a seizure for Fourth Amendment purposes. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412, 420 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116, 1128 (1976).